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2018 Supreme(Mad) 1788
IN THE HIGH COURT OF JUDICATURE AT MADRAS
T. RAVINDRAN, J.
Tamil Nadu Electricity Board, rep. by its Superintending Engineer and Ors - Appellant
Versus
Nagarajan - Respondent
S.A.No.821 of 2005
Decided on : 19-09-2018
Advocate Appeared:
For the Appellants : Mr.V.Viswanathan (TNEB)
For the Respondent: M/s.R.Subramaniyam & R.Meenal
Headnote:
Electricity Act - Section 42,28,29 and 12 to 19 - According to the plaintiff, the suit property had been acquired by him by way of two sale deeds and layout had been formed in respect of the suit property and houses have been built up and plaintiff has also fenced suit property and on account of his avocation at he was unable to watch the suit property regularly - However, during May , when he visited the suit property, to his shock and dismay, he found that defendants had taken a low tension power line across suit property without his knowledge and consent and accordingly, he had made various representations to the defendants to remove the same as the power line drawn across the suit property would be dangerous to his life and the defendants had been representing that by mistaken impression that suit property belonged to the Panchayat, they had taken the power line across the suit property and however, if the plaintiff is ready to deposit the cost with reference to the same and hence, according to plaintiff, he has been necessitated to lay the suit for appropriate relief - Plaintiff is not entitled to seek the removal of the power line and if at all, the plaintiff has any cause, he has to work out his remedy by exhausting the remedy as provided under the Rules of the Electricity Board and the Civil suit is not maintainable and accordingly, prayed for the dismissal of the plaintiffs suit – Held, DW1 examined on behalf of defendants has admitted that she does not know whether the lay out has been formed in respect of the suit property and further, she would also state that they had not verified any revenue records as to ownership of suit property and according to her, the defendants had drawn power line across the suit property on premise that suit property belonged to the panchayat - In this connection, the defendants mainly placed reliance upon Ex.B1 - However, as could be seen from the evidence of DW1, it is found that she has clearly admitted that in Ex.B1, there is no reference about the pulling up of the low tension overhead line from transformer XIV to transformer XV, for purpose of rectifying the low voltage and she would also state that she does not know the reason for not mentioning the transformer XV in Ex.B1 - It is found that before pulling up the overhead low tension scheme, defendants should have obtained consent of plaintiff and as above seen, when defendants had endeavoured to pull up the over head low tension across the suit property without even carrying to verify owner ship of the suit property, it is found that the defendants cannot be allowed to rely upon Section 42 of the Electricity Act for sustaining their act of pulling up the power line across the suit property - Accordingly, it is found that Courts below are justified in granting relief in favour of plaintiff as Ex.B1 does not indicate that work in question had the backing of a sanctioned scheme and the formulated substantial question of law, accordingly, is answered against t defendants and in favour of plaintiff - In view of the abvoesaid reasonings, second appeal fails and accordingly, is dismissed - Consequently, connected miscellaneous petition, if any, is closed.
1. Challenge in this second appeal is made to the Judgment and Decree dated 10.01.2005 passed in A.S.No.71 of 2004 on the file of the First Additional Sub-Court, Cuddalore, confirming the Judgment and Decree dated 27.02.2004 passed in O.S.No.398 of 2003 on the file of the Additional District Munsif Court, Cuddalore.
2. The second appeal has been admitted on the following substantial question of law:
“Whether the Courts below were justified in granting relief on he basis of Ex.B1 without referring to the Annexure to Ex.B1, which indicates the sanction scheme, as to whether in view of the sanction scheme, the Civil Court has jurisdiction to come to a different conclusion?”
3. As the controversy between the parties with reference to the subject matter lying in a narrow compass, it is unnecessary to dwell into the facts of the case in detail.
4. Suffice to state that the suit has come to be laid by the plaintiff against the defendants for the relief of mandatory injunction directing them to remove the low tension electric power line passing through the suit property from South to North.
5. In brief, according to the plaintiff, the suit property had been acquired by him by way of the two sale deeds and the layout had been formed in respect of the suit property and the houses have been built up and the plaintiff has also fenced the suit property and on account of his avocation at Neyveli, he was unable to watch the suit property regularly. However, during May 2003, when he visited the suit property, to his shock and dismay, he found that the defendants had taken a low tension power line across the suit property without his knowledge and consent and accordingly, he had made various representations to the defendants to remove the same as the power line drawn across the suit property would be dangerous to his life and the defendants had been representing that by mistaken impression that the suit property belonged to the Panchayat, they had taken the power line across the suit property and however, they have represented that they would remove the power line, if the plaintiff is ready to deposit the cost with reference to the same and hence, according to the plaintiff, he has been necessitated to lay the suit for appropriate relief.
6. The defendants have taken the defence that the low tension power line was drawn across the suit property, as at that point of time, the suit property was vacant and the defendants had taken the power line to rectify the complaints of low voltage and accordingly, it is stated that the scheme was duly approved with reference to the same and it is their further case that at that time, when the power line had been taken, neither the plaintiff nor anyone objected to the same and thus, it is stated that the plaintiff is not entitled to seek the removal of the power line and if at all, the plaintiff has any cause, he has to work out his remedy by exhausting the remedy as provided under the Rules of the Electricity Board and the Civil suit is not maintainable and accordingly, prayed for the dismissal of the plaintiff's suit.
7. On the basis of the materials placed on record, the Courts below accepted the plaintiff's case and accordingly, granted the relief of mandatory injunction as prayed for. Impugning the same, the present second appeal has been laid.
8. Materials placed on record go to show that the plaintiff is the owner of the suit property. It is further seen that the defendants had taken the low tension power line across the suit property and it is stated that based on the sanctioned scheme, the overhead low tension wire had been taken. It is the contention of the plaintiff that before taking the power line across the suit property, the defendants have failed to obtain his consent and without his knowledge, they had taken the power line across the suit property and therefore, the defendants should be directed to remove the power line. On the other hand, according to the defendants, with reference to the
